People v. Clement

[240]

KOFORD, P. J.

Appellant Clement and a co-defendant, Turner, were charged in separate counts with two crimes— robbery and conspiracy to commit robbery. Defendant Turner pleaded guilty to the charge of robbery and judgment was duly pronounced against him. Appellant Clement pleaded not guilty to both charges. He was found not guilty of robbery and guilty of conspiracy “as charged in the second count of the information.”

The first count after charging robbery further alleged that at the time of the robbery Turner was armed with a deadly weapon and that at the time the defendants were arrested appellant was armed with a concealed deadly weapon. The second count charged conspiracy to commit the same robbery, alleging as overt acts (1) proceeding to the scene of the crime, (2) the arming of Turner with a revolver, (3) the robbery itself and (4) that appellant acted as lookout. The information further alleged that the second count charged acts which were part of the same transaction and event described in the first count.

The court gave the jury a blank form of verdict finding the defendant guilty of robbery in the first degree. As to the second count no instruction was either given by the court or requested by appellant to the effect that the jury should designate the degree of any crime in case they found the defendant guilty only of the conspiracy charge contained in the second count.

It is appellant’s claim upon this appeal that the verdict is void for uncertainty for failing to determine the degree of the crime.

Penal Code section 1157 requires the jury to fix the degree of the crime whenever the defendant is found guilty of a crime which is divided into degrees. It is error to fail to do so in such a case.

(People

v.

Colford,

68 Cal. App. 308 [229 Pac. 63].) It has also been held that the wording of the information charging the degree of the crime will not cure the error of the jury in not finding the degree of crime where it is required by Penal Code section 1157.